Trademark Infringement Trends and Protecting Your Company Against Infringement

Trademarks, also called service marks, are a form of intellectual property. Companies who have developed an idea, product, or design are granted rights to their trademark. Trademark infringement occurs when another company uses the same or similar trademark as another company. Sometimes these duplicates will be exactly the same or they may be subtle. Trademarks must be maintained actively; if not, forfeiture of the trademark will occur which gives copy cats a chance to use the mark legally. However, there is typically a 3-5 year period of nonuse of the trademark before it becomes void. Trademark infringement is becoming more popular, and it is easier to accomplish now that the internet is so widely used. China, Thailand, Africa, and part of the Middle East are known to use trademark infringement on counterfeit goods, and China and Russia are known to ignore trademark laws. It is important to use a private investigator with business law knowledge if you suspect you are a victim of trademark infringement since this is a complicated problem that spans globally. Trademark investigations are performed by specialists or private investigators that have knowledge in business law. Trademark infringement is a crime, and criminal actions and civil litigation can be taken against those who steal the intellectual property of someone else.

(1) Trademark Infringement Trends
While humans have always stolen ideas from others, the new age of trademark infringement started with movies and movies. With the internet, users are able to download pirated material also known as, “bootleg,” versions. Additionally, the internet allows users to buy, sell, and distribute fake or counterfeit movies and music. This is a problem because piracy allows users to download and illegally copy products that have been released without permission of the owner. The victims of these types of crime are producers, musicians, authors, composers, creators, and designers whose work is being reproduced without a profit or recognition.

(2) Trademark infringement really gained the attention of the media with the Napster case in 1999. Shawn Fanning developed a website that allowed users to download MP3’s, many of which were hard to find, through peer-to-peer file sharing. Napster was sued by the Recording Industry Association of America for copyright infringement. The majority of the MP3’s available were pirated copies available to millions of users worldwide. The court ruled in favor of the RIAA, and Napster was order to pay $26 million in damages as well as block access to infringing material on the website. The company could not adhere to these conditions and shut down the site in 2001. The company went bankrupt in 2002, and was recently bought buy Best Buy in 2008 for $121 million.

(3) The future of trademark infringement will depend on technology. With I-Phone applications and mobile devices, infringements upon corporate trademarks are bound to happen. There is speculation that augmented reality technology will lead to trademark infringement lawsuits. This new technology uses new media advertising that allows images and logos to become triggers for 3D experiences on mobile devices or computers. This could be a problem because these experiences could turn company’s own logos against them, and these companies have the right to protect their image and brand.

(4) With companies now resorting to social media for promoting their business, this can also lead to problems for copyright infringement. Facebook allows vanity URL’s, www.facebook.com/your.company.name, which may allow unauthorized users to obtain a company’s vanity URL and their trademark. Facebook applications may also misrepresent a company or its trademark by misleading someone to believe the company is sponsored by the application. Fortunately, Facebook has a reporting procedure that allows companies to report trademark infringements, and Facebook will disable access to the imposter site. However, since Apps are hosted on developer sites, the company must notify the infringing site itself to engage in trademark disputes.

(5) The alarming and dangerous trademark infringement trend is counterfeit pharmaceuticals. These drugs are illegal and are fake medicine. The medicine could be contaminated, contain the wrong or inactive ingredient, or the wrong dose. The counterfeit drugs look very identical to the legitimate drugs and their trademarks. These medicines are dangerous and could be harmful to health. The FDA, along with private companies, monitors these illegal drugs in order to prevent their use in the US. Due to strict guidelines by the FDA, counterfeiting drugs occurs less often in the US compared to developing countries. The extent of the problem worldwide is unknown since it is difficult to detect and investigate, but the WHO estimates up to 30% of drugs in developing countries may be counterfeit. The FDA is paying close attention to counterfeit drugs because it is a lucrative business. With the current economy and high price of medications, more counterfeit drugs are likely to be produced especially with new technology and the internet. Buying drugs over the internet can be risky because the pharmacy providing the drugs can be located anywhere in the world. In order to verify the safety of prescriptions online, use a site with Verified Internet Pharmacy Practice Sites (VIPPS) seal. This means it is a licensed pharmacy where FDA-approved drugs can be purchased. According to a report by Sarah Everts, it is estimated that in 2010, profits for counterfeit pharmaceutical drugs was around $75 billion.

Famous Trademark Infringement Cases

* (6) Facebook V. Lamebook:
Lamebook is being sued by Facebook for “attempting to build a brand that trades off Facebook’s popularity and fame.” Lamebook is a humor site that displays hilarious postings of Facebook users anonymously, and claims they are within their 1st Amendment rights. However, Facebook believes their site does not meet the standards of a parody site and should not be protected. This isn’t the first trademark dispute Facebook has been involved in, and they tend to pressure sites to change their names if the word “book” is involved in any way.
* (7) Red Bull V. Bull Fighter
Red Bull FZE in Austria won a case against a local importer who was selling a similar competing product called Bull Fighter. Red Bull claimed the product mislead customers into thinking Bull Fighter was a Red Bull product or endorsed by Red Bull and even had a similar name and packaging. The court ruled in favor of Red Bull and believed the competitor was intentionally trying to profit off of Red Bull’s marketing and reputation. The local importer was fined AEC 15,000.
* (8) Starbucks V. Shanghai Xingbake Coffee Shop
The American coffee company, Starbucks, has won a lawsuit against the Shanghai coffee shop. The Xingbake Coffee Shop used a similar name and logo and must pay Starbucks $61,956 in damages. The Chinese coffee shop’s name translated to Starbucks, and the company is forced to stop using the name and logo. This isn’t the first time Starbucks has encountered trademark infringement as they previously won a case against an individual in Russia who tried to register their name and logo.
* (9) Adidas V. Payless
Adidas won a case against Payless in a federal court in Portland. Payless was found guilty of infringing upon Adidas America’s Inc. 3-stripe trademark logo. As a result, Payless must pay $304.6 million in damages to Adidas.

Deterring Trademark Infringement

(10) When you believe you have an idea or design you would like to eventually use, file “an intent to use” trademark application. This reserves your trademark, but it will not be officially registered until it is used commercially.

If you believe someone is using your trademark, send them a “cease and desist” letter after consulting with a lawyer. If they continue to use your work after receiving the letter, you can then file a lawsuit. Sometimes money damages are awarded to further discourage the offender from using the registered trademark.

(11) If you are not sure whether someone is infringing upon your trademark, hire a private detective to investigate the matter. These issues are often complex, and private investigators often have a team of consultants who have experience in business law. They will thoroughly investigate the situation and determine the appropriate course of action for you to take.

Remember, the best way to prevent trademark infringement is to register you mark, and monitor any suspicious activity that is not authorized by your company. Sometimes infringement is small, such as a change in one letter in the spelling, or other times it is blatant, such as using your mark entirely. If you notice any unusual promotion of your mark, contact a private investigator.